International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 84

International Journal on Criminology
(A) The Notion of Exceptional Circumstances
War logically constitutes the first hypothesis. The two foundational judgments
go back to the First World War: CE, June 28, 1918, Heyriès (dismissal of a public
servant without prior communication of the file), and CE, February 28, 1919, Dames
Dol and Laurent (infringement of the freedom of movement of “courtesans” at the
port of Toulon). The judge, however, limited these circumstances to only periods of
hostility: May–June 1940 and June–September 1944 (TC, March 27, 1952, Dame
de la Murette), the war in Indochina (1947–1954, CE, January 31, 1958, Chambre
syndicale du commerce d’importation in Indochina, CE, Ass. December 10, 1954,
Andréani), the Madagascar conflict (1947), the Algerian war (1954–1962).
But other periods of tension caused by various events also represented
exceptional circumstances:
-general railway strike in 1938 (CE, April 18, 1947, Jarrigion);
-acts by the Nazi occupier from June 1940 to June 1944 (CE, Ass., December
13, 1957, Barrot and others);
-the events of May–June 1968, qualified as “special circumstances,” but with
similar consequences (CE, Ass., July 12, 1969, Saint-Etienne Chamber of
Commerce);
-natural catastrophe (CE, May 18, 1983, Félix Rhodes: risks of eruption of
the Soufrière volcano in Guadeloupe);
-the tension in New Caledonia in 1985 (CE, November 3, 1989, Galliot).
All cases noted were abnormal situations that prevented the administration
from acting within the strict framework of regular legality.
(B) A Legal Derogation Scheme
The judge ensures that the conditions for implementation are present, and that
this implementation remains within the limits of the exceptional legality he/she has
defined.
It is first necessary that the situation actually be exceptional, then, that a major
interest is sufficiently threatened such that it must be protected at all cost, and finally,
that the use of ordinary procedures of law are insufficient.
Within a situation qualified as exceptional circumstances, the judge verifies
that the powers used for the intended purpose are suitable, which causes him/her
to void certain actions while approving others (during the war in Indochina, legal
expulsion of some individuals: CE, December 10, 1954, Andréani, but irregularity
in maintaining a serviceman once his enlistment had ended: CE, October 23, 1957,
Camy).
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